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Separation of Powers Part II - Constitution Watch Content Series
November 19, 2010
In the first
part of this Constitution Watch we outlined the theory behind
the doctrine of separation of powers, and noted that although
it is seldom applied strictly, its value lies in emphasising the
need for strong independent institutions within a State which
provide checks and balances against encroachment by any one of
the main branches of government into the spheres of the others.
In this part
we shall compare our present Constitution
and the three main constitutional proposals that have been put
forward since 2000 - the Kariba
draft, the NCA draft and the recent Law
Society model - to see how far they provide for a separation
of powers. (In what follows, the effect of the GPA
on the present Constitution will be ignored - it is so vaguely
worded that in most cases it obscures what was previously clear,
and in any event its effect is only temporary).
of Provisions for Separation of Powers in Present Constitution
and Proposed Drafts.
Can the Executive
(i.e. the Head of Government or a Minister) exercise legislative
Constitution: Parliament can confer legislative functions on
anyone (section 32). Under the Presidential
Powers (Temporary Measures) Act and the Emergency Powers
Act, the President has been given almost unlimited, though temporary,
power to enact legislation.
draft: Legislative authority is vested in Parliament
and the President (clause 103) and Parliament may confer legislative
functions on anyone (clause 104).
Only subsidiary law-making powers may be delegated by Parliament,
and all subsidiary legislation must be laid before the National
Assembly (clause 49).
draft: Essentially the same as the NCA draft (clause 53)
Can the President
Constitution: The President has 21 days within which to assent
to a Bill passed by Parliament. If he refuses assent, the Bill
is returned to Parliament and, if the House of Assembly by a
2/3 majority so resolves, the Bill is sent back to the President.
He must then assent to it within 21 days or dissolve Parliament
draft: As under the present Constitution, the President may
refuse to assent to a Bill within 21 days — but only if
he or she has reservations about its constitutionality. If the
President refuses assent, the Bill is returned to Parliament
and, if a 2/3 majority of both the Senate and the House of Assembly
so resolves, the Bill is sent back to the President. He must
then assent to it within 21 days (clause 136).
Very much the same as under the Kariba draft (clause 70).
draft: Again, very much the same as under the Kariba draft (clause
Can the Executive
appoint members of Parliament?
Constitution: Out of 93 Senators, the President appoints five
in his complete discretion; a further 10 are Provincial Governors
appointed by the President in his complete discretion; and a
further 18 are chiefs who owe their appointment to the President
draft: Identical to the present Constitution (clause 106)
Ten Senators will be chiefs, but the manner in which the chiefs
will be appointed is unclear (clause 65).
draft: All members of both Houses of Parliament will be elected
(clauses 65 & 68)
Can the Executive
Constitution: Probably not, if the Constitution is properly
interpreted, but the President has imposed taxes using the Presidential
Powers (Temporary Measures) Act.
draft: No taxes, duties or levies may be imposed unless they
have been authorised by an Act of Parliament, but an Act can
allow a Minister to impose them (clause 222).
No tax, duty or imposition may be imposed except under the authority
of an Act of Parliament (clause 148).
draft: No tax, duty or levy may be imposed except under specific
authority of the constitution or an Act of Parliament (clause
Must the Executive
obey judicial decisions?
Constitution: Yes, though the Constitution does not say so expressly.
Section 31H(2) requires the President to uphold the Constitution
and ensure that all laws are faithfully executed; if he fails
to do so the only sanction is impeachment, a political measure.
Section 18(1a) requires all public officers to uphold the rule
draft: Much the same as the present Constitution (clauses 12
Yes. All organs of the State will have to ensure the effectiveness
of the courts, and judicial decisions will bind organs of the
State (clause 97).
draft: The same as the NCA draft (clause 105).
appointed by an independent body?
Constitution: No. The President appoints judges after consultation
with the Judicial Service Commission, which in any event is
dominated by his appointees (sections 84 & 90)
- Kariba draft:
The President will appoint the Chief Justice and his or her deputy
after consultation with the Judicial Service Commission, and other
judges either with the approval of the Commission or from a list
of names submitted by the Commission (clause 163). Again, the
Commission will be dominated by presidential appointees (clause
The Chief Justice and the Judge President will be appointed
by the President from a list of nominees submitted by the Judicial
Services Commission; other judges will be appointed by the President
on the recommendation of the Commission. All these appointments
will be subject to approval by the Senate. (clause 109) The
Commission’s membership will be drawn from a variety of
sources (clause 115)
draft: Very much the same as the NCA draft (clauses 113-6).
A majority of members of the Judicial Services Commission will
be elected by the legal profession.
Constitution: Yes, expressly by section 79B and indirectly by
ensuring that judges can be removed from office only on limited
grounds and after a proper investigation, and by stating that
their remuneration cannot be reduced while they are in office.
draft: Very much the same as the present Constitution, though
gross incompetence is an additional ground for removing judges
Again, much the same as the present Constitution. Gross incompetence
is an additional ground for removing judges, and the procedure
for doing so is not specified.
draft: Also much the same as the present Constitution, though
again gross incompetence is an additional ground for removing
judges (is some message being sent to our current judges?).
As in the NCA draft, the precise procedure for removing judges
is not specified, though it must be “fair”.
Can the Executive
(i.e. the President or the Prime Minister) determine whether and
when Parliament sits?
Constitution: Yes. The President decides when sessions of Parliament
begin, but there must be a session of Parliament at least once
every six months (section 62(2)).
draft: Much the same as the present Constitution, but the President
will have to summon Parliament within 21 days after each general
election (clause 140).
No. The President will have to summon Parliament within 21 days
after an election, and thereafter Parliament will determine
when it sits.
draft: The same as the NCA draft, though the President, on the
advice of the Prime Minister, will be able to summon Parliament
for special business (clause 63)
Can the President
dissolve or prorogue (i.e. suspend) Parliament at his discretion?
Constitution: Yes, he can do so at any time in his absolute
discretion, i.e. without consulting the Cabinet (sections 62(1),
63(1) & 31H(5), proviso (a)).
draft: The same as the present Constitution (clauses 98(2) &
No. Parliament will be dissolved only if the National Assembly,
by a 2/3 majority, so resolves (clause 58).
draft: The same as the NCA draft (clause 62).
Is the head
of government - the President or the Prime Minister -dismissible
Constitution: Yes. The President can be impeached and removed
from office by a 2/3 majority of both Houses of Parliament (section
29). Also, if a 2/3 majority of each House passes a vote of
no confidence in the Government, the President must either call
a general election, or dismiss the Cabinet, or himself resign
draft: Yes, by a 2/3 majority the Senate can impeach the President
and remove him or her from office (clause 90). And if a 2/3
majority of both Houses of Parliament pass a vote of no confidence
in the Government, the President must either dismiss the Cabinet
or call a general election (clause 97).
- NCA draft:
Yes. The Prime Minister, who is Head of Government, can be removed
from office by a 3/5 majority of the National Assembly (clause
86). And if the National Assembly, by a 3/5 majority, passes a
vote of no confidence in the Government, the Prime Minister must
resign (clause 88).
draft: The same as the NCA draft, though the majority required
for the vote in the National Assembly is 2/3, not 3/5 (clauses
85 & 90).
Is the Attorney-General
or the person responsible for criminal prosecutions independent
of the Executive and the Legislature?
Constitution: No. He is a non-voting member of the Cabinet and
of the Senate and House of Assembly (section 76(3b)).
draft: The same as the present Constitution (clause 175(2)).
Yes. The Attorney-General will be appointed in the same way
as judges, will enjoy security of tenure and will not be a member
of the Cabinet or either House of Parliament (clause 117).
draft: Yes. Though the Attorney-General will be a non-voting
member of Cabinet (clause 127), he or she will not be responsible
for criminal prosecutions. The Independent Prosecutor-General,
who will be responsible for them, will be appointed in the same
way as judges, will enjoy security of tenure and will not be
a member of the Cabinet or either House of Parliament (clause
Constitution comes out very badly from this brief survey. The
Executive dominates the other two arms of government and there
are no effective checks on its power. It is hardly surprising
that Parliament has become little more than a rubber-stamp for
the President’s policies, and that the Judiciary has ceased
to be an effective protector of fundamental human rights.
draft comes out little better. The President will have the same
power to summon, prorogue and dissolve Parliament as he has at
present; he will have the same power to appoint members of the
Senate; and, at least potentially, he will enjoy the same wide
power to enact legislation. He will not, however, have quite so
much freedom to appoint judges so the judiciary may be a little
more independent. And, if the judges find the strength to apply
it, the Declaration of Rights in the Kariba draft is much more
comprehensive than the Declaration in the present Constitution.
Criminal prosecutions, however, will remain in the hands of an
Attorney-General who is closely linked to the politicians who
make up the Executive.
the NCA draft and the Law Society draft there will be greater
separation between the three branches of government, and the Legislature
and the Judiciary will be more independent. The President will
not be able to appoint members of Parliament at all under the
Law Society draft, and the NCA draft will allow only 10 chiefs
to sit in the Senate. Both Houses of Parliament will be able to
decide when and how often they sit. The power of the Executive
- the Prime Minister and his or her Ministers - to enact legislation
will be more restricted. Judges will be appointed by an independent
and transparent process and their judicial autonomy will be better
protected than under the Kariba draft.
legal theorists are right in believing that separation of powers
in a State guarantees the freedom of its citizens, then the fundamental
rights and freedoms of Zimbabweans will be better protected if
they adopt a new constitution along the lines of the NCA draft
or the Law Society draft, than if they opt for the Kariba draft.
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